Spanish Constitution Article 41: Social Security Rights
Article 41 of the Spanish Constitution: Social Security Rights
The public authorities shall maintain a public Social Security system for all citizens, guaranteeing adequate social assistance and benefits in situations of need, especially in case of unemployment. The assistance and benefits shall be optional.
Constitutional Principles
This article contains the outlines of a potential model for Social Security.
- Principle of Publicization of the System: This interpretation can be reached to the extent that the term “public” is used twice. This character of the Social Security system determines that its management should be left to public authorities, and also funding mechanisms should also be supported in the same nature.
- Principle of Universality: Article 41 refers to “all citizens”, so the Social Security System has provided to protect any citizen who is in need – this is the so-called principle of universality of protection, both subjective and objective, without differentiation between subjects according to occupational or otherwise.
- Principle of Sufficiency: Article 41 describes the protection due to insufficient adjective, a requirement of sufficiency that involves the commitment that such allowances are appropriate to the needs that they are protecting, whether it is sufficient in terms of substitution previous income assets, whether sufficient as compensation for lack of resources to survive.
- Principle of General Objectivity: Protection must be provided in response to the situation in which the subject is not protected because the cause of occupational or not, which caused such a situation of necessity.
Formal Content
Thus, it is necessary to complete the design of the model, to mention the division of responsibilities for social protection carried out by the Constitution between the different territorial entities. Neither Article 41 EC nor any other of the guiding principles contained a clause conferring jurisdiction to the State, the Autonomous Communities, or another local authority. But that deal came to articles 149.1 and 148.1. CE.
- According to Article 149.1.17 CE The State has exclusive jurisdiction over the following subjects: Basic legislation and financial system of Social Security, without prejudice to the execution of their services by the Autonomous Communities.
- According to Section 148.1.20 CE Autonomous Communities may assume competences in the following areas: social assistance.
Debate on the Existence of a Constitutional Model
The Constitution is a milestone in the evolution rules on Social Security. Of all the constitutional provisions, it is Article 41 of the Spanish Constitution which contains the most direct references to the Social Security system. It is interesting to note here:
First, the debate on the existence of a constitutional model, as well as their basic characters of any model of Social Security and
They differ, in principle, three positions:
- A relaxed position, according to this, Article 41 EC does not contain social security model, or at least no single and uniform model that can integrate with the wording of Article 41 different potential models.
- According to the conservative position if there is a constitutional model finish of social security, and consequently, the development of legislation can only have a single orientation.
- Together with these two opposing positions, one position is distinguished eclectic: the constitution has not tried to establish a finished model of social security. Article 41 EC contains the features that tends, has to be adapted, and gradually strengthening the legislature. Features that could be synthesized in the subjective universality, assistance and adequate benefits in situations of need, being indifferent to the use of contributory or non-contributory mechanisms.
Second, the normative significance, the scope of Article 41 EC and the eventual model contains.
Guiding Principles of the Social Security System
Constitutional Principles
- Institutional Publificación
- Universality
- Generality
- Principle of Sufficiency
Principles of Legal Origin
The Social Security system, formed by the protective action on their tax forms and tax, is based on the principles of universality, unity, solidarity and equality.
- Principle of Universality, which would correspond to the principle of universality tacitly incorporated into Article 41 EC.
- Principle of Unity. This is a principle that did not appear explicitly in the Constitution, nor the LGSS, although they had been one of the guidelines LBSS 1963. However, the principle of unity if it was implicit in the Constitution, since Article 41 refers to a public social security system, or what is the same, a single, unitary system as interpreted by the TC.
- Principle of Solidarity, because it is the very institution that supports Social Security, and is connected intimately with the social state clause of Article 1.1. CE, the value of material equality of article 9.2 CE, and the manifestation of the distribution of wealth tax on your side in Article 31 EC. Therefore, solidarity requires linked with the constitutional principle of the system publificación.
- Principle of Equality. Is specifically for the first time in LGSS, but can not be perceived as a new principle. If you see now is due to the need for unity, solidarity triad-equality on which orbited the centralist policy of the economic situation of conflict of jurisdiction. Indeed, the principle of equality, as we will see below, and governed the social security system from Article 14 EC, while obviously the social security system should respect the principle of equality in law enforcement, and the prohibition of discrimination.
Briefly be considering the principles of separation of funding sources and distribution, and the principles of equity, contributory and proportionality, which have been highlighted by the covenants of Toledo and beyond.
- The principle of sharing, it remains one of the manifestations of a possible principle of solidarity, first behind, then legalized. In contrast to capitalization, through the distribution system benefits to the system must deal, financed from resources obtained in the same financial year.
- The principles of the Pact of Toledo,
- Contributory, is a principle which should restrict the field of social security in the criteria governing the professional and they are subject to attachment (membership and high) and contribution to the system through contributions. Thus the contributory principle means that the acquisition of the protected status is directly related to the condition of subjects included in the system.
- The principle of proportionality embodied in the exact matching between input / contributions and degree or level of protection (quantity and / or duration of the service). To the extent that the social security system governing the super-principle of solidarity, it is necessary to relativize the principle of proportionality: At least minimally, on pain of destroying the very logic of the system, where the principle of the division, has made a marginal capitalization, pure proportionality mechanism.
- The principle of equity, finally, would mean that, to the same contribution, protected individuals should receive the same benefit as a result of the application of uniform rules for all subjects. However, it could go further, and involve equal equity material: it must be treated equally the same, and unequals unequally. This principle has thus legitimized the introduction of allowances for institutions such as minimum, the reform of the widow’s pension, or SOVI.